Penjatuhan Sanksi Pidana Korporasi
A. Pengertian Korporasi
Menurut
Subekti dan Tjitrosudiro (Muladi dan Dwidja Priyatno, 1991: 14) mengatakan
bahwa “Yang dimaksud dengan korporasi (corporatie)
adalah suatu perseroan yang merupakan badan hukum”.
Satjipto
Rahardjo (Dwidja Priyatno: 2004: 13) mengenai korporasi, menyatakan: “Korporasi
adalah suatu badan hasil ciptaan hukum. Badan yang diciptakan itu terdiri dari “corpus”, yaitu struktur fisiknya dan
kedalamannya hukum memasukan unsur “animus”
yang membuat badan hukum itu mempunyai kepribadian. Oleh karena badan hukum itu
merupakan ciptaan hukum maka kecuali penciptanya, kematiannya pun ditentukan
oleh hukum”.
Sementara
itu korporasi dari perspektif hukum pidana menurut Andi Abu Ayyub Saleh (tanpa
tahun (4): 8) menyatakan: “Persoalan yang dibahas dalam sudut pandang hukum
pidana (hukum pidana materiel) lebih pada perbuatan apa saja yang dapat
digolongkan sebagai perbuatan dapat dihukum dan unsur-unsur apa yang harus
dipenuhi sehingga korporasi dapat dipertanggungjawabkan secara pidana serta
sanksi apa yang dapat dijatuhkan kepada korporasi tersebut.
B. Kejahatan Korporasi (Corporate Crime)
Yang dimaksud dengan kejahatan korporasi adalah suatu bentuk
kejahatan (crime) dalam bentuk white collar crime, yang merupakan
tindakan yang melanggar hukum pidana, yang dilakukan oleh suatu perusahaan atau
badan hukum pidana, yang bergerak dibidang bisnis, melalui pengurus atau yang
diotorisasi olehnya.
Indonesia
today already hit by crime contemporary enough to threaten the environment,
energy sources and patterns of crime in the economy such as crime bank,
computer crime, fraud against consumers in the form of goods produced in low
quality beautifully packaged and sold via advertisements on a large scale with
various corporate crime patterns that operate by penetration and disguises (Dirjosisworo, 1991).
Congress
of PPB V about the Prevention of Crime and Treatment of Offender in 1975 and
then reaffirmed in the UN Congress VII in 1975, showed that there are crimes of
a new form that is committed by a corporation that is driven by entrepreneurs
and bring a very negative impact on the economy the country concerned (Hamzah, 1994). The increasingly sophisticated corporate crime either shape or kind or
modus operandi often transcend national boundaries (trans border crime) and are
often influenced by other countries as a result of globalization.
C. Bentuk-Bentuk Kejahatan Korporasi
1. Pencucian uang (Money Laundering)
2. Penyitaan asset (Asset Forfeiture)
3. Kejahatan kerah putih (White Collar Crime)
4. Iklan palsu (False Advertsing)
5. Penetapan harga (Price Fixing)
6. Kejahatan lingkungan (Environmental Crimes)
7. Kejahatan ekonomi (Economic Crimes)
8. Kejahatan perbankan (Crimes Banking)
D. Penjatuhan
Sanksi Pidana Korporasi di Indonesia
The aim of this article is to look for an alternative model of type arrangement of criminal sanctions can be imposed on the corporation. This is very important, because the criminal sanctions imposed on the corporation, must be implemented carefully, because it would impact on innocent party, such as corporate employees, stockholders, and consumers. The model distinguishes criminal sanctions targeted against the corporation that embraces the differences between the types of criminal sanctions imposed against persons and corporations, an alternative model of policy development legislation that ideal, so that law enforcement regarding the subject of corporate criminal act can be carried out as well as possible.
The aim of this article is to look for an alternative model of type arrangement of criminal sanctions can be imposed on the corporation. This is very important, because the criminal sanctions imposed on the corporation, must be implemented carefully, because it would impact on innocent party, such as corporate employees, stockholders, and consumers. The model distinguishes criminal sanctions targeted against the corporation that embraces the differences between the types of criminal sanctions imposed against persons and corporations, an alternative model of policy development legislation that ideal, so that law enforcement regarding the subject of corporate criminal act can be carried out as well as possible.
In
the Criminal Justice System, the criminal occupies central position. This is
caused by the decision in the criminal system will have far-reaching
consequences, both involving the direct perpetrators of criminal acts and
society at large. The more so if the criminal judgment is considered
inappropriate, it will cause a reaction which “controversial” because of
freedom in this case nature is relative depending on which view it (Muladi, 1992). Developments in the formulation of sanctions (criminal) in some
countries, especially Western Europe already so advanced when compared to other
types of criminal sanctions stipulated in the Criminal Code of Indonesia (Priyatno,
2005). If studied more in depth about the
subject of criminal sanctions widespread criminal acts in the form of a
corporation, it is as if the criminal sanctions contained in the Penal Code are
powerless to accommodate a criminal offense committed by the corporation.
Although there are some relevant sanctions such as criminal penalties and the
judge's verdict could be applied to the corporation. This is because the
Indonesian Penal Code valid embraces the subject of a criminal offense in the
form of human. Criminal sanctions formulated in Article 10 in accordance with
the basic philosophy of the Criminal Code addressed only to humans or person.
Differences in the model type of
criminal sanctions for people and corporations, according to the authors is
necessary, this is because the existing penal system as stipulated in Article
10 of the Criminal Code, philosophically established on the basis and addressed
to the offender's person.
For criminal staple that can be
imposed on the corporation is fine, but if the corporation could not pay the
fine, is not regulated. While for the additional penalty, limited only
confiscation of certain goods and the judge's verdict. For this type of
additional penalty of revocation of certain rights contained in the Criminal
Code mentioned above could not imposed on corporations because, according to
Article 34 paragraph (1) Criminal Code, the rights may be deprived is the right
hold office, the right enter the armed forces, the right elect and be elected,
right to become counsel, the right be the guardian, the right to exercise power
the father and so on. It cannot be addressed to the corporation but only just
addressed to a natural person.
The discussion of the penal system
for corporate criminal system is based on the understanding of substantive
criminal system contained in the Draft Bill 2015. The criminal type in the
Draft Criminal Code of 2015 set out in Article 66, which reads as follows: (1)
Basic Criminal consist of: Imprisonment, criminal cover, criminal supervision,
criminal fines and criminal social work. (2) The order of crime referred to in
item 1 determine the severity of the criminal.
Whereas Article 68, regulating the additional penalty. Additional penalty consisting of: Revocation of certain rights, deprivation of certain goods and or bill, the judge's verdict, the payment of indemnity and fulfilment of customs obligations. Additional penalty can be imposed together with the staple criminal, as the staple criminal, a criminal stand-alone or can be dropped together with the other additional penalty. Additional penalty in the form of fulfilment of the obligations of local customs and/or obligations according to the law the living or the revocation of the rights acquired corporation and dropped although not listed in the formulation of criminal offenses. Additional penalty for the trial and administration are the same with the additional penalty for the criminal. Criminal additional form of revocation of certain rights, if the convicted person is a corporation in certain circumstances has the effect of deterrence more effective. Because the judge may impose. Criminal disenfranchisement owned by a corporation although the formulation of criminal threat was not specified (Article 68 paragraph 1 of the Draft Penal Code, 2015).
Whereas Article 68, regulating the additional penalty. Additional penalty consisting of: Revocation of certain rights, deprivation of certain goods and or bill, the judge's verdict, the payment of indemnity and fulfilment of customs obligations. Additional penalty can be imposed together with the staple criminal, as the staple criminal, a criminal stand-alone or can be dropped together with the other additional penalty. Additional penalty in the form of fulfilment of the obligations of local customs and/or obligations according to the law the living or the revocation of the rights acquired corporation and dropped although not listed in the formulation of criminal offenses. Additional penalty for the trial and administration are the same with the additional penalty for the criminal. Criminal additional form of revocation of certain rights, if the convicted person is a corporation in certain circumstances has the effect of deterrence more effective. Because the judge may impose. Criminal disenfranchisement owned by a corporation although the formulation of criminal threat was not specified (Article 68 paragraph 1 of the Draft Penal Code, 2015).
For this kind of staple crime, according to the draft Penal Code in 2015 which can be levied against the corporation was fined. Criminal fines for corporations is at most the next higher category, except otherwise stipulated by the law (Article 82, paragraph 4). Furthermore, based on the explanation of the Draft Penal Code in 2015, described the background of the emergence of these provisions is: Given the staple criminal who can be imposed on a corporation is only fined, it fair if the maximum threat of criminal penalties imposed on corporations are heavier than the penalty of fines against individuals. To that end, has have been selected how to determine the maximum penalty for a corporation commits an offense that is next higher category. As a record maximum fine stipulated by categories, namely: Category I Rp. 10,000,000.00 (ten million rupiah); category II Rp. 50,000,000.00 (fifty million rupiah); Category III Rp. 150.000000,00 (one hundred and fifty million rupiah); Category IV Rp. 500,000,000.00 (five hundred million rupiah); category V Rp. 2,000,000,000.00 (two billion rupiah); category VI Rp. 15,000,000,000.00 (fifteen billion rupiah) (Article 82 paragraph 3 of the Draft Penal Code 2015). The next setting criminal penalties for corporations to in Article 82, paragraph 5 is said to be: A maximum fine for a corporation commits an offense punishable by imprisonment of 7 (seven) years to 15 (fifteen) years is fine category V, the death penalty, life imprisonment, or imprisonment for a period of 20 (twenty) years is fine category VI.
Furthermore, in the explanation of Article 82, paragraph 5 Draft Criminal Code, it is said that: In terms of the formulation of a crime in a legislation does not specify a penalty of a fine against the corporation, then apply the provisions of this paragraph, the minimum penalty as specified in paragraph 6. Article 82 paragraphs 6 of the draft penal Code 2015 states: Fined at least for the corporation referred to in paragraph 5 is fine Category IV, unless otherwise provided by law. Additional penalty, on the revocation of rights, especially for corporations, then deprived of all rights is obtained corporation (article 93 paragraph 2 of the Draft Penal Code 2015). Such as the right to perform activities in certain sectors (the explanation of Article 93 paragraph 2). If the revocation of rights imposed on corporations, then the judge is free to determine the length of the revocation of such rights (Article 96 paragraph 2 of the Draft Penal Code 2015).
The types of criminal sanctions proposed in the draft Criminal Code in 2015, basically oriented on the "Offender" even though there are several types of criminal victim-oriented as criminal supervision, criminal social work. Although there are criminal compensation payment, which is actually one of the victim-oriented criminal (victim oriented), but it is a pity not explicitly mention may be subject to the corporation. Although the actual criminal charge of payment of compensation shall be liable to the corporation (Article 101 paragraph 1 of the Draft Penal Code), but if we examine the next verse and Article 101 that paragraph 2, which reads: If the obligation to pay compensation as referred to in paragraph 1 is not implemented, shall substitute imprisonment for criminal penalties.
Based on the formulation of the article, then the rules of origin 101 Draft Penal Code in 2015, aimed against people and not for corporations. This is because, if the obligation to pay damages not implemented, shall substitute imprisonment for criminal penalties. This provision can only be imposed on the subject of criminal acts in the form of people. So did staple types of criminal punishment in the form of supervision, it also is not worn to the corporation. Supposed to be this criminal corporation may be subject to the term "corporate probation", which applies to corporations with accompanying conditions, including restitution to the victim. The idea of "corporate probation" is virtually identical to criminal conditional/supervision (probation sentence suspended) for the common man. This is in accordance with the opinion of Wagner (1999) which states that the probation order to a corporate entity is similar to the probation order for individuals.
So the idea of “corporate probation” is a logical consequence and extension of the subject of crime, from “people” to “corporations”. Reasons criminal supervision could not imposed on corporations, as stipulated in the draft Criminal Code of 2015, in article 79 to article 81, if studied further, a criminal type, addressed to people and not to corporations. Reasons legally can be seen in Article 79 Draft Criminal Code in 2015, which reads: The defendant of committing criminal offenses which the prescribed penalty imprisonment of 7 (seven) years, can be sentenced supervision.
The provision which reads: “Punishable by imprisonment”, indicates that the subject of criminal supervision aimed against criminal acts such as people and not corporations, cause imprisonment can only be imposed on people/humans. To support or reinforce that criminal supervision aimed against people, can be seen in Article 80 paragraph 1 of the Draft Criminal Code in 2015, which reads: Criminal supervision can be meted out to the defendant considering the personal circumstances and actions. The provision which reads: “Considering the personal circumstances”, it shows that having a personal situation are individuals. This is confirmed also in particular Article 80 paragraph 3 sub C, which is set on one proviso, namely supervision criminal punishment the convicted person should do something or not doing certain acts, without reducing freedom of religious and political freedom. By the provisions that reads “without prejudice to the freedom of religious and political freedom”, it indicates clearly that such provision is directed only to the people and not corporations, because corporations do not have the right form of freedom of religion and politics, and who has such rights is a natural person, or the subject of human law. Other types of sanctions in the draft Criminal Code in 2015 which could otherwise be subject to the corporation, however not addressed to the corporation is the staple types of criminal punishment in the form of social work. Type criminal charge of Criminal Social Work, requirements are that: If imprisonment the imposed of not more than six (6) months or fine of not more than fines category I (Article 88 paragraph 1 of the Draft Penal Code, 2015); in social work criminal punishment as referred to in paragraph 1, shall be considered the following matters: Recognition the defendant on criminal acts committed; age employability the defendant according to legislations in force; approval after the defendant explained about the purpose and all matters relating to criminal social work; social history of the defendant; safety protection of the defendant; religious and political beliefs of the defendant; and the ability of the defendant to pay a fine (Article 88 paragraph 2 of the Draft Penal Code 2015).
Furthermore, in the explanation of Article 82, paragraph 5 Draft Criminal Code, it is said that: In terms of the formulation of a crime in a legislation does not specify a penalty of a fine against the corporation, then apply the provisions of this paragraph, the minimum penalty as specified in paragraph 6. Article 82 paragraphs 6 of the draft penal Code 2015 states: Fined at least for the corporation referred to in paragraph 5 is fine Category IV, unless otherwise provided by law. Additional penalty, on the revocation of rights, especially for corporations, then deprived of all rights is obtained corporation (article 93 paragraph 2 of the Draft Penal Code 2015). Such as the right to perform activities in certain sectors (the explanation of Article 93 paragraph 2). If the revocation of rights imposed on corporations, then the judge is free to determine the length of the revocation of such rights (Article 96 paragraph 2 of the Draft Penal Code 2015).
The types of criminal sanctions proposed in the draft Criminal Code in 2015, basically oriented on the "Offender" even though there are several types of criminal victim-oriented as criminal supervision, criminal social work. Although there are criminal compensation payment, which is actually one of the victim-oriented criminal (victim oriented), but it is a pity not explicitly mention may be subject to the corporation. Although the actual criminal charge of payment of compensation shall be liable to the corporation (Article 101 paragraph 1 of the Draft Penal Code), but if we examine the next verse and Article 101 that paragraph 2, which reads: If the obligation to pay compensation as referred to in paragraph 1 is not implemented, shall substitute imprisonment for criminal penalties.
Based on the formulation of the article, then the rules of origin 101 Draft Penal Code in 2015, aimed against people and not for corporations. This is because, if the obligation to pay damages not implemented, shall substitute imprisonment for criminal penalties. This provision can only be imposed on the subject of criminal acts in the form of people. So did staple types of criminal punishment in the form of supervision, it also is not worn to the corporation. Supposed to be this criminal corporation may be subject to the term "corporate probation", which applies to corporations with accompanying conditions, including restitution to the victim. The idea of "corporate probation" is virtually identical to criminal conditional/supervision (probation sentence suspended) for the common man. This is in accordance with the opinion of Wagner (1999) which states that the probation order to a corporate entity is similar to the probation order for individuals.
So the idea of “corporate probation” is a logical consequence and extension of the subject of crime, from “people” to “corporations”. Reasons criminal supervision could not imposed on corporations, as stipulated in the draft Criminal Code of 2015, in article 79 to article 81, if studied further, a criminal type, addressed to people and not to corporations. Reasons legally can be seen in Article 79 Draft Criminal Code in 2015, which reads: The defendant of committing criminal offenses which the prescribed penalty imprisonment of 7 (seven) years, can be sentenced supervision.
The provision which reads: “Punishable by imprisonment”, indicates that the subject of criminal supervision aimed against criminal acts such as people and not corporations, cause imprisonment can only be imposed on people/humans. To support or reinforce that criminal supervision aimed against people, can be seen in Article 80 paragraph 1 of the Draft Criminal Code in 2015, which reads: Criminal supervision can be meted out to the defendant considering the personal circumstances and actions. The provision which reads: “Considering the personal circumstances”, it shows that having a personal situation are individuals. This is confirmed also in particular Article 80 paragraph 3 sub C, which is set on one proviso, namely supervision criminal punishment the convicted person should do something or not doing certain acts, without reducing freedom of religious and political freedom. By the provisions that reads “without prejudice to the freedom of religious and political freedom”, it indicates clearly that such provision is directed only to the people and not corporations, because corporations do not have the right form of freedom of religion and politics, and who has such rights is a natural person, or the subject of human law. Other types of sanctions in the draft Criminal Code in 2015 which could otherwise be subject to the corporation, however not addressed to the corporation is the staple types of criminal punishment in the form of social work. Type criminal charge of Criminal Social Work, requirements are that: If imprisonment the imposed of not more than six (6) months or fine of not more than fines category I (Article 88 paragraph 1 of the Draft Penal Code, 2015); in social work criminal punishment as referred to in paragraph 1, shall be considered the following matters: Recognition the defendant on criminal acts committed; age employability the defendant according to legislations in force; approval after the defendant explained about the purpose and all matters relating to criminal social work; social history of the defendant; safety protection of the defendant; religious and political beliefs of the defendant; and the ability of the defendant to pay a fine (Article 88 paragraph 2 of the Draft Penal Code 2015).
If observed the above Terms, inter alia if imprisonment the imposed no more than (6) six months, is one of the requirements of the criminal punishment of community service, and imprisonment itself can only be imposed on the person/man, age employability (expressly show that aimed against human beings) and so on, then this type of criminal charge of criminal social work which is set in the draft criminal Code in 2015, geared towards those that are not addressed to the corporation, even though can theoretically be imposed on the corporation.
Nonetheless the formulation of the draft Penal Code in 2015, have made progress in the formulation of criminal sanctions specifically targeted against the corporation when compared with the current Criminal Code still valid. Even the expansion of criminal offenses subject to corporation can be generalized. It is, in accordance with the provisions of article 213 Draft Penal Code 2015, which states: “Every person is an individual, including the Corporation”.
Model Alternatif Penjatuhan Sanksi Pidana
Korporasi
The
draft Criminal Code in 2015, it did not distinguish between types of criminal
sanction arrangements between the types of sanctions are targeted against
persons and corporations. That is the model type of criminal sanctions targeted
against persons and corporations united in one package setting the types of
crime. According to the authors, this condition can be called as one of the
models setting the type of criminal sanctions for the corporation. Such a model
adopted in most countries that codify criminal law (including the Netherlands).
Other models, as an alternative to the model are the need for differentiation
types of criminal sanctions for people and corporations.
Based on the description above, the
known models of type setting criminal sanctions, imposed against the corporation.
The first model, the model type settings criminal sanctions aimed at both the
person and the corporation no difference, in the first model is the basic
philosophy of the imposition of the sentence is at the point of emphasis to the
human/person. The second model, the model type settings criminal sanctions distinguish strictly criminal sanctions for people and for the corporation, the basic philosophy of the criminal punishment even though people and corporations as subjects of law,but they are different both in nature and theoretically (Muladi and Priyatno, 2015).
For it is necessary to find criteria
on the basis or reason for these distinctions, in particular in order to
determine the criteria or categories of principal and additional criminal punishment
aimed at the corporate or legal entity. Search criteria as a basis for
determining the model type of criminal sanctions aimed at corporations, if the
criteria for corporate criminal type model is different from the criteria for
the types of crime (both models), as alternative models.
Criteria could be seen from the
definition/understanding of the corporation. The corporation as the subject of a criminal offense is different with humans. It is caused by nature, there are some limitations of a crime that can be commited by corporation, when compared with the criminal offenses committed by humans.
Model stelsel criminal sanctions may
be imposed against the corporation as the subject of a criminal act, as an
alternative model options that had not been getting good setting with after
listening to the description above, the model that distinguishes the type of
criminal sanctions for people and corporations (both models). Selection of the
model chosen setting is a policy issue, one important stage in the policy
formulation stage which is the stage of law enforcement agencies in abstract by
lawmakers. Prevention and control of crime with penal is a “penal policy” or
“penal law enforcement policy” that functionalization/operationalization of several
stages: (1) Formulation (legislative policy/legislation; (2) Applications
(policy judicial/judicial); (3) Execution (executive policy/administrative).
Referensi:
Pengertian korporasi http://raypratama.blogspot.com/2012/02/pengertian-korporasi-dan-tindak-pidana.html
Pengertian kejahatan korporasi https://djicom.wordpress.com/2010/01/10/kejahatan-korporat-corporate-crime/
Kejahatan korporasi https://www.abacademies.org/articles/the-alternative-model-of-corporate-criminal-sanction-management-in-indonesia-6769.html
Penjatuhan sanksi pidana korporasi https://www.abacademies.org/articles/the-alternative-model-of-corporate-criminal-sanction-management-in-indonesia-6769.html
Pengertian korporasi http://raypratama.blogspot.com/2012/02/pengertian-korporasi-dan-tindak-pidana.html
Pengertian kejahatan korporasi https://djicom.wordpress.com/2010/01/10/kejahatan-korporat-corporate-crime/
Kejahatan korporasi https://www.abacademies.org/articles/the-alternative-model-of-corporate-criminal-sanction-management-in-indonesia-6769.html
Penjatuhan sanksi pidana korporasi https://www.abacademies.org/articles/the-alternative-model-of-corporate-criminal-sanction-management-in-indonesia-6769.html
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